Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except: (a) sales of Inventory in the ordinary course of business; (b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course)); (c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business; (d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary; (e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries; (f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and (g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that (i) (i) such property is exchanged for credit against the purchase price of similar replacement property, (ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or (iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary; (h) dispositions permitted under Section 8.3; (i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary which is not a Loan Party to a subsidiarySubsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10; (j) dispositions constituting Permitted Investments; (k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan; (l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and (m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein).; (n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and (o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith business judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary[reserved];
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary which is not a Loan Party to a subsidiarySubsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein).;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) that (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) , (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) or (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary Subsidiary which is not a Loan Party to a subsidiarySubsidiary Subsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary Subsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and;
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xii) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yiiii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of paymentstransaction, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Net Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 2.5; provided, that, with respect to any Net Cash Proceeds received from any such disposition that constitutes the Quest Sale, the Borrower (or other applicable Loan Party or Subsidiary) may retain the Quest Retained Proceeds, it being understood that any Net Cash Proceeds from the Quest Sale in excess of the amount of the Quest Retained Proceeds shall be subject to a mandatory prepayment of the limitations thereinObligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5(b).;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; provided, that 50% of the Net Cash Proceeds of such Sale and Leaseback Transaction pursuant to this Section 8.5(n) shall be applied towards a mandatory prepayment of the Obligations in accordance with Section 2.5(b); and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in thethe form of cash or Cash Equivalents and (iii) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of Net Cash Proceeds with respect to any sale or disposition of the type described in this Section 8.5(o) in excess of $15,000,000 shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5.
Appears in 1 contract
Sources: Unsecured Term Loan Credit Agreement (Corre Horizon Fund, Lp)
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) that (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) , (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) or (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary Subsidiary which is not a Loan Party to a subsidiarySubsidiary Subsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein).;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in theor
Appears in 1 contract
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary[reserved];
(h) dispositions permitted under Section 8.3;
(i) dispositions of property to a Loan Party or a Subsidiary; provided, that, (i) by any if the transferor of such property is a U.S. Loan Party or Subsidiary to a Canadian Loan Party, the transferee thereof must be a U.S. Loan Party or a Canadian Loan Party or (B) such disposition shall constitute a Permitted Investment and (ii) by a subsidiarySubsidiary which if the transferor of such property is not a Loan Party to (other than a subsidiarySubsidiary which is not U.S. Loan Party or a Canadian Loan Party), (A) the transferee thereof must be a Loan Party or (iiiB) by a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10shall constitute a Permitted Investment; provided further, that Permitted Intercompany Cash Management Payments shall be permitted at all times;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate pursuant to this clause (k) would not exceed $5,000,000 in any calendar year 3,500,000 and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary Subsidiary which is not a Loan Party if done in the ordinary coursecourse of business); and;
(ml) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale Sale and leaseback transactionsLeaseback Transactions) of any assets outside the ordinary course of business, solely to the extent that (xii) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yiiii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of paymentstransaction, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, unless the 2020 Term Loan Subordination Agreement and the ABL Subordination AgreementRequired Lenders have expressly consented in writing to any other application of payments, 100% of the proceeds ofNet Net Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein).2.5;
(nm) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more at least as favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, Transaction and (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such timeEquivalents; and
(on) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of any individual disposition pursuant to this clause (n) would not exceed $200,000, and the property that is aggregate fair market value of all assets disposed of in the aggregate pursuant to this clause (n) would not exceed $2,000,000 and (ii) subject to such the Intercreditor Agreement, 100% of Net Cash Proceeds with respect to any sale or disposition and of the type described in this Section 8.5(n) shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in theaccordance with and to the extent required by Section 2.5.
Appears in 1 contract
Sales, Etc. of Assets. The No Loan Parties Party will, nor will not, and will not it permit any of their its Subsidiaries to, directly or indirectly, in any fiscal year, sell, transfer or otherwise dispose of any of its assets assets, or grant any option or other right to purchase or otherwise acquire any of its assets, other than (including by an allocation i) damaged, obsolete or worn out assets, and scrap, in each case disposed of assets among newly divided limited liability companies in the ordinary course of business, (ii) Permitted Liens, Cash Equivalents and Permitted Investments, (iii) sales and licenses of products and licenses of non-exclusive intellectual property in the ordinary course of business to bona fide non-Affiliated third parties, (iv) non-exclusive licenses and sublicenses to bona fide non-Affiliated third parties for the use of the property of the Borrower or its Subsidiaries in the ordinary course of business, (v) leases or subleases of property of the Borrower or its Subsidiaries in the ordinary course of business, (vi) dispositions or discounting of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business and exclusive of factoring or similar arrangements, (vii) any abandonment, failure to renew, or other disposition in the ordinary course of business of Intellectual Property that is not material to the conduct of the business of any Loan Party or any Subsidiary of such Loan Party, (viii) deposits of copies of source code and release of such copies of source code pursuant to a “”plan escrow arrangements entered into in the ordinary course of division””) except:
business and consistent with past practices, provided that any such deposit does not result in the permanent transfer of ownership of such source code, (aix) sales of Inventory in the ordinary course of business;
, (bx) the sale dispositions between or other disposition among Foreign Subsidiaries, (xi) dispositions between or among Loan Parties, (xii) sales of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of Products in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by to the counterparties pursuant to a Subsidiary which is not written contract for a Loan Party or any if done in ordinary course));
its Subsidiaries to act as the production company for the production of such Products, and (cxiii) the any sale, transfer or other disposition or series of cash and Cash Equivalents in the ordinary course of business;
(d) related sales, transfers or other dispositions having a value not in excess of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary which is not a Loan Party to a subsidiarySubsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein)5,000,000.;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith business judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and;
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary[reserved];
(h) dispositions permitted under Section 8.3;
(i) dispositions of property to a Loan Party or a Subsidiary; provided, that, (i) by any if the transferor of such property is a U.S. Loan Party or Subsidiary to a Canadian Loan Party, the transferee thereof must be a U.S. Loan Party or a Canadian Loan Party or (B) such Disposition shall constitute a Permitted Investment and (ii) if the transferor of such property is a Loan Party (other than a U.S. Loan Party or a Canadian Loan Party, (iiA) by a subsidiarySubsidiary which is not a Loan Party to a subsidiarySubsidiary which is not the transferee thereof must be a Loan Party or (iiiB) by such Disposition shall constitute a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10Permitted Investment; provided, further, that Permitted Intercompany Cash Management Payments shall be permitted at all times;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan8.5;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary Subsidiary which is not a Loan Party if done in the ordinary coursecourse of business); and;
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale Sale and leaseback transactionsLeaseback Transactions) of any assets outside the ordinary course of business, solely to the extent that (xii) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yiiii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of paymentstransaction, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject unless the Agent has expressly consented in writing to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreementany other application of payments, 100% of the proceeds ofNet Net Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 2.5; provided, that, with respect to any Net Cash Proceeds received from any such disposition that constitutes the Quest Sale, the Borrower (or other applicable Loan Party or Subsidiary) may retain the Quest Retained Proceeds, it being understood that any Net Cash Proceeds from the Quest Sale in excess of the amount of the Quest Retained Proceeds shall be subject to a mandatory prepayment of the limitations thereinObligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5(b).;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; andprovided, that 50% of the Net Cash Proceeds of such Sale and Leaseback Transaction pursuant to this Section 8.5(n) shall be applied towards a mandatory prepayment of the Obligations in accordance with Section 2.5(b); and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before prior to the Fifth Amendment No. 6 Effective Date and solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in thethe form of cash or Cash Equivalents and (iii) 100% of Net Cash Proceeds with respect to any sale or disposition of the type described in this Section 8.5(o) in excess of $15,000,000 shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5.
Appears in 1 contract
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith business judgment of Borrowerthe applicable Loan Party, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and;
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary[reserved];
(h) dispositions permitted under Section 8.3;
(i) dispositions of property to a Loan Party or a Subsidiary; provided, that, (i) by any if the transferor of such property is a U.S. Loan Party or Subsidiary to a Canadian Loan Party, the transferee thereof must be a U.S. Loan Party or a Canadian Loan Party or (B) such Dispositiondisposition shall constitute a Permitted Investment and (ii) by a subsidiarySubsidiary which if the transferor of such property is not a Loan Party to (other than a subsidiarySubsidiary which is not U.S. Loan Party or a Canadian Loan Party), (A) the transferee thereof must be a Loan Party or (iiiB) by such Dispositiondisposition shall constitute a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10Permitted Investment; provided, further, that Permitted Intercompany Cash Management Payments shall be permitted at all times;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as (i) made at fair market value and and, (ii) the aggregate fair market value of all assets disposed of in the aggregate (including the proposed disposition) pursuant to this clause (k) would not exceed $5,000,000 in any calendar year and3,500,000 and (iii) such sale or disposition is not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary Subsidiary which is not a Loan Party if done in ordinary coursecourse of business); andprovided that, to the extent any MRE Collateral is included in any such sale or disposition, any such sale or disposition of MRE Collateral shall be subject to the receipt of minimum Net Cash Proceeds allocable to such MRE Collateral that is in excess of ninety percent (90%) (or, in the case of Specified Phase II Real Estate, eighty percent (80%)) of the Appraised Value of such MRE Collateral;
(ml) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale Sale and leaseback transactionsLeaseback Transactions on arm’s length terms or terms that are at least as favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction) of any assets outside the ordinary course of business, solely to the extent that (xii) such disposition shall have been approved by both the Independent Committee (as defined in the Term Loan Agreement as in effect on the Closing Date) and the full board of directors of the BorrowerBorrower Agent, (yiiii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of paymentstransaction, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and Equivalents; provided that (ivA) subject to the Intercreditor Agreementextent the amount of the Borrowing Base is reduced by any such sale, transfer or disposition, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the Borrowers must apply cash proceeds ofNet Cash Proceeds of such disposition shall be used to pay outstanding Revolving Credit Loans in an amount equal to such reduction in the Obligations hereunder (inclusive, for amount of the avoidance of doubt, of any Applicable Premium) Borrowing Base in accordance with Section 2.5 2.5(b)(ii) and (B) to the extent any MRE Collateral is included in any such sale, transfer or disposition, any such sale, transfer or disposition of MRE Collateral shall be subject to the limitations thereinreceipt of minimum Net Cash Proceeds allocable to such MRE Collateral that is in excess of ninety percent (90%) (or, in the case of Specified Phase II Real Estate, eighty percent (80%).) of the Appraised Value of such MRE Collateral;
(nm) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more moreat least as favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, and (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of of; provided, that, to the extent any MRE Collateral is included in any such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to toany such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at atTransaction of MRE Collateral shall be subject to the receipt of minimum Net Cash Proceeds allocable to such timeMRE Collateral that is in excess of ninety percent (90%) (or, in the case of Specified Phase II Real Estate, eighty percent (80%)) of the Appraised Value of such timeMRE Collateral; and
(on) sales, transfers or other potential asset divestitures divestituresdisposals (in each case, whether direct or indirect) of any assets by the Loan Parties and their Subsidiaries Subsidiaries, as disclosed to the Agent on or before prior to the Fifth Amendment Effective Closing Date and solely to the extent that (iAi) the fair market value of any assets subject to any individual sale, transfer or other disposition pursuant to this clause (n) would not exceed $200,000, and the aggregate fair market value of all assets sold, transferred or disposed of in the aggregate pursuant to this clause (n) would not exceed $2,000,000, (ii) any such sale sale, transfer or other disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale sale, transfer or other disposition, and (iiBiii ) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in thethe form of cash or Cash Equivalents; provided that (A) to the extent the amount of the Borrowing Base is reduced by such disposition, the Borrowers must apply cash proceeds of such disposition to outstanding Revolving Credit Loans in an amount equal to such reduction in the amount of the Borrowing Base in accordance with Section 2.5(b)(ii) and (B) to the extent any MRE Collateral is included in any such sale, transfer or disposition, any such sale, transfer or disposition of MRE Collateral shall be subject to the receipt of minimum Net Cash Proceeds allocable to such MRE Collateral that is in excess of ninety percent (90%) (or, in the case of Specified Phase II Real Estate, eighty percent (80%)) of the Appraised Value of such MRE Collateral. Notwithstanding the foregoing, no transaction under this Section 8.5 (other than as provided in clause Section 8.5(e) above) shall include the disposition or transfer of Intellectual Property to any Person (other than a Loan Party) which could reasonably be expected to be necessary in connection with the exercise of remedies with respect to the ABL Priority Collateral during the continuation of an Event of Default, unless the Agent shall have entered into a license agreement, in form and substance reasonably satisfactory to the Agent, with the purchaser or transferee of such Intellectual Property, which provides for the use of such Intellectual Property during the continuation of an Event of Default (it being understood and agreed that no Intellectual Property shall be deemed necessary in connection with the exercise of remedies to the extent such Intellectual Property no longer relates to any ABL Priority Collateral remaining after giving effect to any such disposition or transfer).
Appears in 1 contract
Sources: Credit Agreement (Team Inc)
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of BorrowerBorrower Agent, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and;
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, year to the extent that
(i) that (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) , (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) or (iii) the Board of Directors or senior management of the Borrower Agent or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower Agent or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary subsidiary which is not a Loan Party to a subsidiarySubsidiary subsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary subsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10value;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate (including the proposed disposition) would not exceed $5,000,000 in any calendar year <(which amount shall be increased by any unused portion of such $5,000,000 exclusion from the immediately preceding year (not to exceed $10,000,000 in any calendar year) >and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary Subsidiary which is not a Loan Party if done in ordinary course); provided that all proceeds of ABL Priority Collateral in excess of $<5,000,000>1,000,000 in the aggregate sold in connection with asset sales permitted by this clause (k) shall be paid in cash and shall be paid by Borrowers to Agent within two (2) Business Days of receipt thereof, to be applied first to the outstanding principal amount of the Revolving Credit Loans and second to Collateralize outstanding Letters of Credit (without the necessity of a demand by Agent or any Lender);
(l) dispositions set forth on Schedule 8.5; and
(m) sales, transfers Loan Parties or their Subsidiaries may make sales or dispositions of other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely subject to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors satisfaction of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein)Payment Conditions.;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract
Sources: Credit Agreement (Team Inc)
Sales, Etc. of Assets. The No Loan Parties Party will, nor will not, and will not it permit any of their its Subsidiaries to, directly or indirectly, in any fiscal year, sell, transfer or otherwise dispose of any of its assets assets, or grant any option or other right to purchase or otherwise acquire any of its assets, other than (including by an allocation i) damaged, obsolete or worn out assets, and scrap, in each case disposed of assets among newly divided limited liability companies in the ordinary course of business, (ii) Permitted Liens, Cash Equivalents and Permitted Investments, (iii) sales and licenses of products and licenses of non-exclusive intellectual property in the ordinary course of business to bona fide non-Affiliated third parties, (iv) non-exclusive licenses and sublicenses to bona fide non-Affiliated third parties for the use of the property of the Borrower or its Subsidiaries in the ordinary course of business, (v) leases or subleases of property of the Borrower or its Subsidiaries in the ordinary course of business, (vi) dispositions or discounting of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business and exclusive of factoring or similar arrangements, (vii) any abandonment, failure to renew, or other disposition in the ordinary course of business of Intellectual Property that is not material to the conduct of the business of any Loan Party or any Subsidiary of such Loan Party, (viii) deposits of copies of source code and release of such copies of source code pursuant to a “”plan escrow arrangements entered into in the ordinary course of division””) except:
business and consistent with past practices, provided that any such deposit does not result in the permanent transfer of ownership of such source code, (aix) sales of Inventory in the ordinary course of business;
, (bx) the sale dispositions between or other disposition of obsolete among Foreign Subsidiaries, (xi) dispositions between or worn out propertyamong Loan Parties, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business and (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(cxii) the any sale, transfer or other disposition or series of cash and Cash Equivalents in the ordinary course of business;
(d) related sales, transfers or other dispositions having a value not in excess of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary which is not a Loan Party to a subsidiarySubsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein)5,000,000.;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract
Sources: Loan and Security Agreement (890 5th Avenue Partners, Inc.)
Sales, Etc. of Assets. The Loan Parties will notSell, and will not permit any of their Subsidiaries to, directly or indirectly, selllease, transfer or otherwise dispose of of, or permit any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant Subsidiaries to a “”plan of division””) except:
(a) sales of sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, other than Inventory to be sold in the ordinary course of its business, except:
(i) sales and leases of assets in the ordinary course of its business consistent with prudent business practice for companies engaged in similar businesses, for cash and fair value (such as fiber sales);
(bii) in a transaction authorized by Section 5.02(d) (other than clause (ii) thereof);
(iii) the sale sales or other disposition dispositions as set forth in Schedule VII;
(iv) sales of assets as consented to by the Required Holders for cash and for fair value;
(v) sales of obsolete or worn out property, or equipment and other property no longer used or useful relevant to the core business or operations of any Obligor for cash and for fair value in the conduct of business, in each case, disposed of in the ordinary course of business (and an aggregate amount not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course))to exceed $2,000,000;
(cvi) sales of equipment for cash and for fair value in an aggregate amount not to exceed $10,000,000 to the extent the proceeds thereof are used by any Obligor to purchase replacement equipment that is substantially similar in type and function to the equipment sold or to be sold, within 180 days before or after the date of any such sale;
(vii) any sale, lease, transfer or other disposition by the Parent or any Subsidiary of cash the Parent to the Issuer and Cash Equivalents in the ordinary course of businessits Subsidiaries that are Obligors;
(dviii) salesassignments, transfers sales or other dispositions at fair market value for cash of accounts receivable representing amounts owed to any Obligor by any Person that is subject to a proceeding under the Bankruptcy Code; and
(ix) intercompany assignments, sales or other dispositions of property in connection with a Permitted Reorganization; provided, that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course case of business and not interfering in any material respect with the business sales of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary which is not a Loan Party to a subsidiarySubsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited assets pursuant to Section 8.10;
clauses (jiv) dispositions constituting Permitted Investments;
and (kviii) dispositions set forth above, the Issuer shall, on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing receipt by any Obligor or any of its Subsidiaries of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to Net Cash Proceeds from such fixed assets) so long as made at fair market value sale, prepay the Notes pursuant to, and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 amount set forth in Section 2.08(a), as specified therein to be applied in the order of priority set forth in Section 2.08. Nothing in this Section 5.02(e) shall restrict the Parent from issuing, selling, transferring or otherwise disposing of, for or without consideration and by dividend or otherwise, any calendar year and not part of an accounts receivable financingEquity Interests in the Parent, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and
(m) salesany option, transfers warrant or other disposals (in each case, whether direct right to purchase or indirect, and including sale and leaseback transactions) of otherwise acquire any assets outside the ordinary course of business, solely to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be Equity Interests in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein)Parent.;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”"plan of division””") except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary subsidiary which is not a Loan Party to a subsidiarySubsidiary subsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary subsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;8.5; and
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year (which amount shall be increased by any unused portion of such $5,000,000 exclusion from the immediately preceding year) and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein).;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract
Sales, Etc. of Assets. The Loan Parties will notSell, and will not permit any of their Subsidiaries to, directly or indirectly, selllease, transfer or otherwise dispose of of, or permit any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant Subsidiaries to a “”plan of division””) except:
(a) sales of sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, other than Inventory to be sold in the ordinary course of its business, except:
(i) sales and leases of assets in the ordinary course of its business consistent with prudent business practice for companies engaged in similar businesses, for cash and fair value (such as fiber sales);
(bii) in a transaction authorized by Section 5.02(d) (other than clause (ii) thereof);
(iii) the sale sales or other disposition dispositions as set forth in Schedule VII;
(iv) sales of assets as consented to by the Required Holders for cash and for fair value;
(v) sales of obsolete or worn out property, or equipment and other property no longer used or useful relevant to the core business or operations of any Obligor for cash and for fair value in the conduct of business, in each case, disposed of in the ordinary course of business (and an aggregate amount not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course))to exceed $2,000,000;
(cvi) sales of equipment for cash and for fair value in an aggregate amount not to exceed $10,000,000 to the extent the proceeds thereof are used by any Obligor to purchase replacement equipment that is substantially similar in type and function to the equipment sold or to be sold, within 180 days before or after the date of any such sale;
(vii) any sale, lease, transfer or other disposition by the Parent or any Subsidiary of cash the Parent to the Issuer and Cash Equivalents in the ordinary course of businessits Subsidiaries that are Obligors;
(dviii) salesassignments, transfers sales or other dispositions at fair market value for cash of accounts receivable representing amounts owed to any Obligor by any Person that is subject to a proceeding under the Bankruptcy Code; and
(ix) intercompany assignments, sales or other dispositions of property in connection with a Permitted Reorganization; provided, that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course case of business and not interfering in any material respect with the business sales of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary which is not a Loan Party to a subsidiarySubsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited assets pursuant to Section 8.10;
clauses (jiv) dispositions constituting Permitted Investments;
and (kviii) dispositions set forth above, the Issuer shall, on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing receipt by any Obligor or any of its Subsidiaries of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to Net Cash Proceeds from such fixed assets) so long as made at fair market value sale, prepay the Notes pursuant to, and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 amount set forth in Section 2.09(a), as specified therein to be applied in the order of priority set forth in Section 2.09. Nothing in this Section 5.02(e) shall restrict the Parent from issuing, selling, transferring or otherwise disposing of, for or without consideration and by dividend or otherwise, any calendar year and not part of an accounts receivable financingEquity Interests in the Parent, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and
(m) salesany option, transfers warrant or other disposals (in each case, whether direct right to purchase or indirect, and including sale and leaseback transactions) of otherwise acquire any assets outside the ordinary course of business, solely to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be Equity Interests in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein)Parent.;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith business judgment of Borrowerthe applicable Loan Party, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and;
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary[reserved];
(h) dispositions permitted under Section 8.3;
(i) dispositions of property to a Loan Party or a Subsidiary; provided, that, (i) by any if the transferor of such property is a U.S. Loan Party or Subsidiary to a Canadian Loan Party, the transferee thereof must be a U.S. Loan Party or a Canadian Loan Party or (B) such Disposition shall constitute a Permitted Investment and (ii) if the transferor of such property is a Loan Party (other than a U.S. Loan Party or a Canadian Loan Party, (iiA) by a subsidiarySubsidiary which is not a Loan Party to a subsidiarySubsidiary which is not the transferee thereof must be a Loan Party or (iiiB) by such Disposition shall constitute a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10Permitted Investment; provided, further, that Permitted Intercompany Cash Management Payments shall be permitted at all times;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate (including the proposed disposition) would not exceed $5,000,000 in any calendar year and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary Subsidiary which is not a Loan Party if done in ordinary coursecourse of business); and;
(ml) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale Sale and leaseback transactionsLeaseback Transactions) of any assets outside the ordinary course of business, solely to the extent that (xii) such disposition shall have been approved by both the Independent Committee (as defined in the Term Loan Agreement as in effect on the Closing Date) and the full board of directors of the BorrowerBorrower Agent, (yiiii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of paymentstransaction, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject Equivalents; provided that to the Intercreditor Agreementextent the amount of the Borrowing Base is reduced by such disposition, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the Borrowers must apply cash proceeds ofNet Cash Proceeds of such disposition shall be used to pay outstanding Revolving Credit Loans in an amount equal to such reduction in the Obligations hereunder (inclusive, for amount of the avoidance of doubt, of any Applicable Premium) Borrowing Base in accordance with Section 2.5 (subject to the limitations therein2.5(b)(ii).;
(nm) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(on) other potential asset divestitures by the Loan Parties and their Subsidiaries Subsidiaries, as disclosed to the Agent on or before prior to the Fifth Amendment Effective Closing Date and solely to the extent that (iA) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, and (iiB) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in thethe form of cash or Cash Equivalents; provided that to the extent the amount of the Borrowing Base is reduced by such disposition, the Borrowers must apply cash proceeds of such disposition to outstanding Revolving Credit Loans in an amount equal to such reduction in the amount of the Borrowing Base in accordance with Section 2.5(b)(ii). Notwithstanding the foregoing, no transaction under this Section 8.5 (other than as provided in clause (e) above) shall include the disposition or transfer of Intellectual Property to any Person (other than a Loan Party) which could reasonably be expected to be necessary in connection with the exercise of remedies with respect to the ABL Priority Collateral during the continuation of an Event of Default, unless the Agent shall have entered into a license agreement, in form and substance reasonably satisfactory to the Agent, with the purchaser or transferee of such Intellectual Property, which provides for the use of such Intellectual Property during the continuation of an Event of Default (it being understood and agreed that no Intellectual Property shall be deemed necessary in connection with the exercise of remedies to the extent such Intellectual Property no longer relates to any ABL Priority Collateral remaining after giving effect to any such disposition or transfer).
Appears in 1 contract
Sources: Credit Agreement (Team Inc)
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales the sale by a Loan Party to Liquid Labs or any SPV Entity of Inventory in the ordinary course of businessPermitted Receivables Assets and related assets under a Warehouse Facility;
(b) the sale all of the assets and equity of Alquemie Travel Pty Limited;
(c) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course)transaction);
(cd) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(de) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(ef) non-exclusive licenses of Intellectual Property in the ordinary course of business and that do not interfering interfere in any material respect with the business of the Loan Parties and their Subsidiaries;
(fg) sales and dispositions of assets or property that do not constitute assets of the type included in the calculation of the Borrowing Base and that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(h) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of BorrowerBorrower Agent, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary which is not a Loan Party to a subsidiarySubsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;
(l) sales or dispositions of other fixed assets (including intangible property related to such fixed assets) not otherwise permitted in clauses (a) through (h) above so long as made at fair market value for at least 75% cash or Cash Equivalents and the aggregate fair market value of all assets disposed of in any fiscal year (including the aggregate proposed disposition) would not exceed $2,500,000 and no Event of Default exists;
(j) Permitted Capped Call Transactions and dispositions thereof;
(k) Dispositions of Permitted Corporate Ventures;
(l) Dispositions of property (i) by any Loan Party to any other Loan Party, (ii) by any Subsidiary (which is not a Loan Party) to any Loan Party, (iii) by any Subsidiary (which is not a Loan Party) to any Subsidiary that is not a Loan Party and (iv) by any Loan Party to any Subsidiary that is not a Loan Party, in the case of this (iv), to the extent permitted by clause (h) of Section 8.10;
(m) Dispositions to an SPV Entity or third-party of Permitted Receivables Assets in connection with any Warehouse Financing);
(n) Dispositions in connection with business charge card receivables arrangements in the ordinary course of business;
(o) the sale, transfer, disposition or discount without recourse of accounts receivable in the ordinary course of business in connection with the compromise or collection thereof;
(p) Restricted Payments, Investments and ▇▇▇▇▇ explicitly permitted hereunder; and
(q) sales or dispositions of fixed assets (including intangible property related to such fixed assets) not otherwise permitted in clauses (a) through (p) above so long such dispositions would not exceed $5,000,000 in any calendar year Fiscal Year and not part no Event of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course)Default exists; and
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusiveprovided that, for the avoidance of doubt, nothing in this Section 8.5 shall limit or prohibit the issuance of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein).;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures equity interests by the Loan Parties and Borrowers or any of their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in theSubsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Navan, Inc.)
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary subsidiary which is not a Loan Party to a subsidiarySubsidiary subsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary subsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;8.5; and
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year (which amount shall be increased by any unused portion of such $5,000,000 exclusion from the immediately preceding year) and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein).;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary subsidiary which is not a Loan Party to a subsidiarySubsidiary subsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary subsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan8.5;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xix) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yiiy) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein)2.5.;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract
Sales, Etc. of Assets. The Loan Parties will notBorrower shall not sell, and will not lease, ---------------------- transfer or otherwise dispose of, or permit any of their its Subsidiaries toto sell, directly or indirectly, selllease, transfer or otherwise dispose of of, any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant assets, or grant any option or other right to a “”plan of division””) purchase, lease or otherwise acquire any assets, except:
(a) sales of Inventory assets (other than Leased Assets) in the ordinary course of its business;
(b) the sale sales or other disposition dispositions for cash of obsolete or worn out property, or equipment (other property no longer used or useful in the conduct of business, in each case, disposed of than Leased Assets) in the ordinary course of business (and not part of an accounts receivable financing, factoring that is obsolete or similar transaction (other than no longer useable by a Subsidiary which is not a Loan Party if done or useful to the Borrower or its Subsidiaries in ordinary course))its business;
(c) sales or exchanges of any equipment (other than Leased Assets) so long as the sale, transfer purpose of such sale or other disposition exchange is to acquire replacement items of cash and Cash Equivalents in equipment which are the ordinary course functional equivalent of businessthe items of equipment so sold or exchange; provided that the consideration received -------- shall not include promissory notes exceeding ten percent (10%) of the value of the equipment so sold;
(d) salesdispositions for cash not otherwise covered in clauses (a), transfers or other dispositions of property that are a settlement of or payment (b) and (c) not exceeding $250,000 in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiaryfiscal year;
(e) non-exclusive licenses sales of Intellectual Property in Leased Assets pursuant to any option or other right to purchase of any lessee under the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their SubsidiariesLeases;
(f) dispositions of assets prior to the abandonment of Intellectual Property Closing Date on terms acceptable to the Lender (or lapse of any registration or application in respect of Intellectual Property) that isincluding, in without limitation, the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business reduction of the Loan Parties and their Subsidiaries; andAmount);
(g) dispositions of equipment assets or real property to a bona fide third party stock of Statex on the terms set forth in an amount not to exceed $2,500,000 in any calendar yearparagraphs 1 through 3 of that certain letter of intent dated November 24, to 1999 among the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;Borrower, Holdings, ▇▇▇▇ ▇▇▇▇▇▇ and B. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; and
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary which is not a Loan Party to a subsidiarySubsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary which is not a Loan Party so long as such disposition is for fair market value PS Trading's interests in certain storage tanks and otherwise not prohibited pursuant to Section 8.10;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth leases located at the Oakland airport on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior terms acceptable to the date of borrowing Lender (including, without limitation, the reduction of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xi) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yii) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations thereinAmount).;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract
Sales, Etc. of Assets. The Loan Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of any of its assets (including by an allocation of assets among newly divided limited liability companies pursuant to a “”plan of division””) except:
(a) sales of Inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business (and not part of an accounts receivable financing, factoring or similar transaction (other than by a Subsidiary which is not a Loan Party if done in ordinary course));
(c) the sale, transfer or other disposition of cash and Cash Equivalents in the ordinary course of business;
(d) sales, transfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Loan Party or any Subsidiary;
(e) non-exclusive licenses of Intellectual Property in the ordinary course of business and not interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
(f) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Loan Parties and their Subsidiaries; and
(g) dispositions of equipment or real property to a bona fide third party in an amount not to exceed $2,500,000 in any calendar year, to the extent that
(i) (i) such property is exchanged for credit against the purchase price of similar replacement property,
(ii) (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or
(iii) (iii) the Board of Directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(h) dispositions permitted under Section 8.3;
(i) dispositions of property (i) by any Loan Party or Subsidiary to a Loan Party, (ii) by a subsidiarySubsidiary subsidiary which is not a Loan Party to a subsidiarySubsidiary subsidiary which is not a Loan Party or (iii) by a Loan Party to a subsidiarySubsidiary subsidiary which is not a Loan Party so long as such disposition is for fair market value and otherwise not prohibited pursuant to Section 8.10;
(j) dispositions constituting Permitted Investments;
(k) dispositions set forth on Schedule 8.5 as reasonably agreed in good faith by the Borrower and Agent prior to the date of borrowing of the First Delayed Draw Term Loan;
(l) sales or dispositions of other assets (including intangible property related to such fixed assets) so long as made at fair market value and the aggregate fair market value of all assets disposed of in the aggregate would not exceed $5,000,000 in any calendar year and not part of an accounts receivable financing, factoring or similar transaction (other than by a subsidiary which is not a Loan Party if done in ordinary course); and
(m) sales, transfers or other disposals (in each case, whether direct or indirect, and including sale and leaseback transactions) of any assets outside the ordinary course of business, solely to the extent that (xix) such disposition shall have been approved by both the Independent Committee and the full board of directors of the Borrower, (yiiy) an independent fairness opinion shall have been issued by a reputable investment bank or consultancy affirming the fairness of such transaction and (z) unless the Agent has expressly consented in writing to any other application of payments, (iii) the consideration received from such disposition shall be in the form of cash or Cash Equivalents and (iv) subject to the Intercreditor Agreement, the 2020 Term Loan Subordination Agreement and the ABL Subordination Agreement, 100% of the proceeds ofNet Cash Proceeds of such disposition shall be used to pay the Obligations hereunder (inclusive, for the avoidance of doubt, of any Applicable Premium) in accordance with Section 2.5 (subject to the limitations therein).;
(n) Sale and Leaseback Transactions, solely to the extent that (i) any such Sale and Leaseback Transaction is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such Sale and Leaseback Transaction, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such Sale and Leaseback Transaction and shall be in the form of cash or Cash Equivalents and (iii) at the time of such Sale and Leaseback Transaction, the aggregate fair market value of all property that is subject to such Sale and Leaseback Transactions in the aggregate shall not exceed the remaining Maximum Sale and Leaseback and Mortgage Debt Amount at such time; and
(o) other potential asset divestitures by the Loan Parties and their Subsidiaries as disclosed to the Agent on or before the Fifth Amendment Effective Date solely to the extent that (i) any such sale or disposition is on arm’s length terms or terms that are more favorable to the Loan Party or Subsidiary engaging in such sale or disposition, (ii) the consideration received by such Loan Party or Subsidiary shall be at least equal to the fair market value of the property that is subject to such sale or disposition and shall be in the
Appears in 1 contract